0
Msc Political Science- International Politics
Institute of Political Science- Leiden University
Supervisor: Prof. dr. Amy Verdun
Second reader: Dr. Niels van Willigen
Wordcount: 10730
Rabii Zenati/ S2111284
6-27-2019
Distant Justice and
Ineffectiveness of The
International Criminal Court
A Role for Hybrid Tribunals?
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Abstract
Established in 2002 with a permanent mandate to deliver impartial and independent justice and replace irreversibly ad-hoc international and internationalized tribunals, the International Criminal Court (ICC)’s promise as being central to the international criminal justice architecture has ever since been fraught with increased criticisms and major crises triggering serious calls for reform.
This thesis problematizes the ICC’s ideologically distanced modus operandi of justice that goes beyond sheer remoteness analyses as a key factor underlying the Court’s poor record of convictions throughout its operation. It argues that the ICC’s desirability towards being politically and philosophically distant from domestic authorities on the cooperation of which it fundamentally relies by design has resulted in ineffective investigations and made it structurally incapable of reaching successful trials for lack of evidence. Applying a case-oriented comparison of international criminal tribunals, I find that the extent to which the ICC insulates itself from domestic States and State-actors shapes its ability to investigate and prosecute successfully and suggest a balance needs to be stricken for the ICC to deliver effective yet independent and impartial justice.
More broadly, it is suggested that the ICC’s central role in combating mass atrocity might need to be revisited and complemented by a hybrid tribunal operating concurrently therewith. I explore the theoretical relevance of the hybrid experiment by looking into the precedent of the Special Criminal Court (SCC) recently established alongside the ICC in the Central African Republic (CAR). A counterfactual probing of this illustrative case predicts that a fully operational hybrid tribunal working jointly with the ICC when purely domestic courts are incapacitated, might well offset the ICC’s distance missteps thereby enabling it to rise again with effective trials. This encouraging CAR precedent prefigures the potential of such joint international criminal accountability enterprises elsewhere for the ICC to address effectively its accountability void as well as future in-depth analyses of hybrid tribunals as a way of remedying the ICC’s ineffectiveness broadly termed.
Key words International Criminal Court, hybrid tribunals, ad-hoc international criminal tribunals, distance, Central African Republic, investigations, Office of the Prosecutor, effectiveness, independence, impartiality, Special Criminal Court
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Abbreviations
CAR Central African Republic
DRC Democratic Republic of the Congo
EIC European Investigative collaborations
ICC International Criminal Court
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IMTs Nuremberg and Tokyo International Military Tribunals
OTP Office of The Prosecutor of the International Criminal Court
SCC Special Criminal Court in the Central African Republic
UK United Kingdom
UN United Nations
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Table of contents
INTRODUCTION……….………..……5
INEFFECTIVENESS OF THE ICC………..………...9
Ineffectiveness: An ambiguous tale of many notions……….…………. 9
Ineffectiveness of the ICC: An evidence problem………..………..11
Evidence-gathering: Distance in the line of fire……….…. ……….12
CONCEPTUALIZING DISTANCE………...………13
RESEARCH DESIGN……….……… 15
Case selection and Method ...…...15
Operationalization strategy ………...…..16
Measurement and data collection………..…...16
Analysis and Interpretation………..…17
DISCUSSION AND CONCLUSION ………..……20
LOOKING FORWARD...21
Narrowing the distance………...….21
A role for hybrid tribunals?...22
Probing hybrids along the CAR model………23
Case selection………..…23
Method………… ………...……23
Operationalization strategy……… 24
Measurement and data collection………25
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DISCUSSION AND CONCLUSION………..…29 REFERENCES………...31 APPENDIX………39 Appendix A: Addendum to the Counterfactual analysis: Lebow’s non-linear model and emotional commitments of actors ...40
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INTRODUCTION
To what extent is the International Criminal Court (ICC) effective in delivering its mandate as
the central court in the international criminal justice system? A lot of enthusiasm and support
has been expressed in favor of this institution when it became operational in 2002 with a
permanent mandate to prosecute and end impunity of crimes against humanity, war crimes,
genocide and aggression enshrined in its founding treaty, the Rome Statute.1 The ICC was
mandated to be complementary2 of states, acting as a last resort i.e. when national courts cannot
or will not step in themselves. When it came into existence, the global justice landscape was much more ‘piecemeal’ and ‘unstable’ (Kersten, 2017: 251), characterized by ad-hoc justice
where temporary ad hoc international3 and ‘internationalized’4 criminal tribunals were
operating in fields such as the former Yugoslavia, Rwanda, Sierra Leone and Cambodia5. The
advent of the ICC6 carried the hope of establishing a permanent and effective body that is
‘central’ (United Nations, 2017) to the universe of criminal justice, replacing irreversibly the old fragmented architecture of global accountability and ‘obviat[ing] the need for new ad hoc courts’ (Van Schaak, 2016). It was seen as giving shape to an ideal of international justice that spanned for decades, premised on ‘the idea that an international criminal court would be at the
center of a global justice architecture… with others at the periphery’ (Stahn, 2018 :159).
1Rome Statute of the International criminal Court. Signed on 17 July 1998, entered into force on 1 July 2002. See Rome
Statute (1998).
2Preamble, Rome Statute.
3Ad hoc International Criminal Tribunals for the former Yugoslavia ‘ ICTY’ (1993-2017) and for Rwanda ‘ ICTR’
(1994-2015), established respectively in the Netherlands and Tanzania.
4 Also dubbed hybrid or mixed. I should use the three terms interchangeably in this paper.
5A noteworthy distinction in this context: all hybrid tribunals are ad hoc mainly due to their limited temporal mandate, but
not all ad hoc tribunals are hybrid in that they could also be international. See for example Nouwen (2006).
6A worthwhile indication, prior to the ICC and the ad hoc tribunals, accountability for war crimes witnessed so-called
victor’s justice through the establishment of the International Military Tribunals (IMTs) in Nuremberg and for the Far East (IMTFE) in Tokyo in post-WW II.
6
Yet, there seems that the tide has turned and that expectations have outweighed
achievements. In its very short existence, the ICC has navigated through increased criticisms
and major crises7, prompting recently the most serious calls for reform.8 Criticisms charge the
ICC as a ‘neocolonial project’ (Ainley, 2011: 329), lacking legitimacy because of its ‘democratic deficit’ (Morris, 2002: 596), pursuing selective justice targeting the African
continent (Hoile, 2014: 210)9, internal mismanagement (Simons, 2019)10, reputational behavior
(Becker & Pieper, 2017; Simons, 2019)11, hindrance of domestic peace (Parrott, 2006)12 and
amnesty processes (Snyder & Vinjamuri, 2004). In respect of trials in particular, the
International Criminal Court has thus far displayed a checkered record with only three
convictions for international crimes secured in the Mali and Democratic Republic of the Congo
(DRC) situations13, alongside four acquittals and a number of cases dismissed for lack of
evidence (Lingsma, 2019).14
The revival of hybrid tribunals after a period of relative dormancy15 which came about
with the establishment in June 2015 of the Special Criminal Court (SCC) for the Central African
7 Major crises include the rift between Africa and the ICC reflected in African states’ withdrawals from the Rome statute -
Burundi, South Africa and the Gambia (the latter two States reversed their decisions thereafter). Less resented though were recent withdrawals of Malaysia and the Philippines. Other issues include ICC’s lack of universality and active opposition from big powers (Rudolph, 2017: 3). The recent decision of ICC judges not to investigate US war crimes in Afghanistan as a result of american threats (Human Rights Watch, 2019) may have been the last straw.
8 A prominent call for an independent assessment of the ICC’s functioning was made this year by four former presidents of the
International Criminal Court’s Assembly of States Parties, the Court’s management oversight and legislative body, see Atlantic Council (2019).
9 A distintion is of worth here: the ICC is also conducting investigations, preliminary and proper, in other situation countries
as various as Palestine, Ukraine, Georgia and Venezuela. However, The ICC has currently only prosecuted and tried Africans.
10 Within the overall criticism on the ICC’s budget management, the court is entangled in ongoing international lawsuits for
having unfairly dismissed a number of employees which resulted in important compensations thus far.
11 As part of a European Investigative collaborations (EIC) project, scandals involved notably unorthodox contacts between the
current Prosecutor and her predecessor, and leaked internal documents by two ICC staff in their alleged bid to aid the former Prosecutor for influence. The two ICC employees have been dismissed since then. Related details may be accessed at the EIC portal. Another damage came from the ongoing lawsuits filed by ICC judges against the Court before an international arbitration tribunal over pay increase.
12 Sudan and Uganda remain the most conspicuous instances of the ICC intervention as a hindrance to peace. See for example
Roach (2011). On a general note, the question whether the ICC is of help or an obstacle to peace remains academically unresolved and is captured by the so-called peace vs justice dilemma. On the peace vs justice debate, see for example Kersten (2016: 19-36).
13 ‘Situation’ is an ICC Statute term which loosely denotes the theatre of investigations. For details, see for example Rastan
(2008).
14 This source sets the most accurate record made of the ICC’s operations to date.
15 Between 2000 and 2007, six hybrid courts were established. No further hybrid courts were established until the CAR Special
Criminal Court. The United Nations recommended the creation of Hybrids notably in Sri Lanka and South Sudan. An innovative attempt to utilize hybrids for prosecuting ISIL/Da’esh perpetrators of atrocious crimes has been lately advanced by the Netherlands.
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Republic (CAR) may have suggested that the global justice landscape is still in search of a
viable model of justice and that the promises of having the ICC as the central deliverer of world
accountability for the most serious crimes may have been short-lived and that there is ‘a paradigm shift… [in favor of] a hybridization of forms… with domestic, regional, hybrid and local responses gaining more attention’ (Stahn, 2018: 160). The establishment of the SCC in
the Central African Republic (CAR) thus marked the renewal of alternative models of
international accountability but also set in motion a novel modus operandi of justice: It will be
the first time that a hybrid Court will operate concurrently with an international criminal court
that is already actively investigating and prosecuting serious crimes in the same country.
Much has been written in scholarly literature on hybrid tribunals.16 Much less has
analyzed this institution in conjunction with the ICC. The emergence of hybrid tribunals,
consisting of a blend of national and international judges and prosecutors and a mix of national
and international law and relying on the material support of the International Community, has typically taken place in ‘post-conflict situations to deal with mass atrocity, usually where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or
where an international tribunal exists but cannot cope with the sheer number of cases, as in
Kosovo’ (Dickinson, 2002: 1059). Their establishment has also taken place in response to the
limits of purely domestic courts.17
The preponderant reasoning for the reviving interest in hybrids over the last years has
been the expectations gap and evident limitations of the ICC (Kersten, 2017) much the same as
a response in the past to criticisms of previous ad-hoc tribunals (Katzenstein, 2003).
International criminal courts and tribunals can only try a small number of perpetrators for
jurisdictional reasons (Kersten, 2017). They are distant from affected communities (Verovšek,
16 See generally on hybrid tribunals, Romano, Nollkaemper, & Kleffner (2004).
17 Problems of domestic courts that warranted the establishment of hybrids include most notably state capacity, norm penetration and legitimacy. See Dickinson (2003) and Mc Auliffe (2011).
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2017). International trials are inordinately lengthy, costly and selective (Akhavan, 2013). In
contrast, hybrids are arguably ‘cheaper and more relevant than ad-hoc behemoths in some distant land’ (Cockayne, 2005: 455). They seem to straddle the best of both worlds: international resources and local relevance (Dickinson, 2002).
Most academic accounts that focused on distance as the issue presiding for the
inefficacy of international criminal tribunals- including the ICC- have taken it as structural,
deriving from the very nature of the ICC and its ad hoc twin predecessors being located in The
Hague and Arusha, and thus conducting justice from afar, removed from the scenes of crimes
where particularly victims and witnesses are often located. This thesis attempts to make a fresh visit to the question of ICC’s ineffectiveness in prosecuting mass atrocity as based on a wider conception of distance that goes beyond its static physical nature. The central claim is that the
ICC’s ineffectiveness of prosecution18 is inherent in its fundamental embeddedness of distance
as a way to maintain its sacrosanct independence and impartiality. By actively embracing a
fundamental desirability towards being politically and philosophically distant from domestic
situations it is investigating, it has actually further undermined its prosecutions and made itself
structurally incapable of reaching successful trials for lack of evidence.
This thesis has two specific aims: to examine the unsuccessful ICC prosecutions throughout its operation and highlight the impact the Court’s distant modus operandi of justice has had on its effectiveness of trials. It also seeks to highlight the plausible theoretical potential
of a hybrid tribunal operating concurrently with the ICC with respect to the specific and
problematic issue-area of investigation for future in-depth and broader debates about
18 Whilst a distinction exists between prosecutions and trials in international criminal justice, I simplify by referring to
effectiveness of the former and the latter interchangeably throughout this paper. Trials are usually associatted with the ICC’s operation broadly speaking, while prosecutions are primarily an activity carried out by the OTP which is in focus here.
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appropriate ways for the ICC to improve its effectiveness; and illustrates this relevance through
the CAR case which sets a precedent for the ICC/ hybrid future cases in Africa and beyond.
My thesis proceeds as follows. I make a thorough review of effectiveness of
international tribunals and courts and then move on to developing a theoretical argument based
on an inductive analysis of observational evidence. I investigate the factors presiding for the ICC’s observed ineffectiveness in the pursuit of international criminal accountability and identify distance as the key factor. I then develop and operationalize my theoretical claim and
test the generated hypothesis. The remainder of my thesis is forward-looking, policy-oriented.
Based on the findings of the first section, I make an effort at a plausibility probe into a renewed
role of hybrid tribunals in complement of the ICC’s work. This thesis relies on the
socio-political and legal theories and employs normative claims, theoretical arguments, factual
assessments and counterfactual reasoning. I conclude by discussing the results and implications
of this work and suggest avenues for further research.
INEFFECTIVENESS OF THE ICC
(In)effectiveness: An ambiguous tale of many notions
In a statement to the 17th Assembly of States parties to the Rome Statute held in December
2018 in The Hague, the delegate of the United Kingdom (UK) plainly criticized the
performance of the International Criminal Court (ICC). He bitingly observed: ‘[W]e cannot bury our heads in the sand and pretend everything is fine when it isn’t. The statistics are sobering. After 20 years, and 1.5 billion euros spent we have only three core crime convictions’’ (ICC, 2018a).
In sharp contrast, the first Prosecutor of the ICC, Luis Moreno Ocampo, in his
inaugural ceremony in 2003, noted back then: ‘’ … The effectiveness of the International
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complementarity implies that the absence of trials before this Court, as a consequence of
the regular functioning of national institutions, would be a major success’’ (ICC, 2003).
The biting statement of the UK delegate and the Prosecutor’s statement, while
antagonizing each other, raise nevertheless together the following interrogations: Does the
number of cases account for success or otherwise of international criminal courts? Is the
Court (in)effective when it has a limited number of cases on the docket or, on the converse,
effective when it has more trials being conducted at The Hague? Put in academic terms, by
what standards should one gauge effectiveness or otherwise of the ICC?
Extensive scholarly literature has addressed the effectiveness yardstick issue as
pertaining to the work of international judicial bodies including criminal tribunals (Shany,
2012; Peskin, 2014; Barria & Roper, 2005; Guzman; 2008; Helfer & Slaughter, 2005). Despite
the wealth of literature, an accurate conceptualization of effectiveness appears to be a
challenging task. Shany (2012: 227; 229) points ‘crude’ and ‘intuitive’ definitions of effectiveness in a significant portion of the literature and highlights ‘lack of clear, persuasive criteria’ for assessing effectiveness of international tribunals and courts. Barria & Roper (2005) focus on the (ICTY) and the (ICTR) and suggest that there is no accepted standard for judging
the failure of these tribunals. Some scholars appraise success of international tribunals and
Courts based on their ability to promote international peace and security (Shinoda, 2002), to
reintegrate societies (Drumbl, 2000), to deter future atrocities (Jo & Simmons, 2016) or to
prevent them (Akhavan, 2013). Others see effectiveness in the delivery of criminal
accountability and enforcement of international law (Peskin, 2014), or in the independence and
the usage of the Court (Posner & Yoo, 2015) or else in improved compliance by States with the
legal norm such courts enforce (Guzman, 2008). Wemmers (2009) evaluates success with
respect to victims, while Arbia & Bassy (2011: 62) argue that success of the ICC will particularly depend on whether ‘justice is seen to be done’. Akhavan (2013: 531) espouses a
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‘complementarity’ perspective by contending that success of the ICC is ultimately measured by this Court being ‘idle’ as a result of empowered national proceedings.
Although literature provides illuminating insights, there appears that appraising ICC’s effectiveness in achieving its aim of fulfilling international criminal justice against an accurate
benchmark is particularly challenging, judging by the profusion in literature of these outcomes.
This open-endedness is captured by Shany (2012: 233) as ‘goal ambiguity’ of the mandate of
international criminal courts.
However, to the extent that the ICC was designed to fight impunity and thus deter and
prevent egregious abuses19, it has to show that its threat of punishment and accountability acts
as a deterrent to would-be crimes. Indeed, it is often said that the ICC serves prospects of
deterrence20 by posing a credible threat to offenders, whereas failing to prosecute perpetrators
would actually ‘embolden the instigators of crimes against humanity elsewhere’
(Cronn-Furman, 2013: 437-438). Critical therefore to the ICC’s raison d’etre is to show that it delivers
and that perpetrators are to stand international criminal trials would they commit brazen
atrocities.
Ineffectiveness of the ICC: An evidence-problem
Does the poor record of ICC’s successful trials reflect genuine national investigations and
prosecutions as the ICC Prosecutor may have suggested or is it rather the result of its
deficiencies? More precisely, what accounts for the paucity of convictions at the ICC
witnessed thus far?
19General deterrence is set out by the International community under the Rome Statute Preamble which states that the goal of
the International Community is ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’.
20 General deterrence has remained largely unproven in scholarly literature (See Cronn-Furman, 2013). The first systematic
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Scholars have recently pointed toward a consistent evidence-problem as the main reason behind ICC’s ineffectiveness of prosecutions (See de Vos, 2013; Hoile, 2014; Sadat, 2018; Labuda, 2019a; Clark, 2018) starting with the case collapse of Jean-pierre Bemba, a
Congolese rebel-cum politician, in the CAR in June 2018 (ICC, 2018b) followed by the
acquittal of the former Ivorian President Laurent Gbagbo and his youth Minister Charles
Blé Goudé (ICC, 2019), and the near collapse of the prosecution’s case against Thomas
Lubanga (Clark, 2018: 304). Hoile pointed towards a ‘lack of well investigated cases’ in
Sudan, Kenya and Libya particularly salient in the Thomas Lubanga case when ICC judges
had to reject most of OTP evidence (2014: 129). Some went on to imply that the recent
acquittals and other previous similar difficulties have become structural making the problem
self-evident from the [15 years] of operation of the OTP (Labuda, 2019a). Former ICTY
and ICC judge Van den Wyngaert has come lately to corroborate these accounts. She shared
her disappointment and frustration at the often insufficient burden of proof she had to
grapple with during her tenure as a judge at the ICC as back as in 2013, stressing that the
quality of evidence must improve (Knaak, 2019).
This discomfiting critique, coming from an authoritative source within the Court,
lays evidence-gathering age-long difficulties bare at the OTP, and raises inevitably the
interrogation as to what has left the ICC with such poor evidence so as to stand in such an
enviable adjucative capacity.
Evidence-gathering: Distance in the line of fire
What accounts for such failure to collect probative evidence? Scholars have singled out a
problematic way of the ICC in the administration of its judicial activities. The ICC’s distance
from domestic contexts greatly impedes its ability to grasp their realities and gather high-quality
evidence for its trials, to protect witnesses, and build trust with effected communities (Clark,
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grounds, insufficient prioritization of investigations, OTP’s short field presence and lack of
national staff in the mostly African contexts under investigation in contrast with other organs
of the Court, and reliance on intermediaries; while Clark (2018: 303; 19) underscores that the court’s distanced way of justice has damaged its relations and its legitimacy with affected communities. Levi, Hagan and Dezalay (2006) illustrate the hesitation to engage in
on-the-ground investigations by the Office of the Prosecutor at the International Criminal Court. The
above analysis raises the question of what underlies the ICC’s practice of distanced justice?
This question brings me to the theoretical framework which is introduced below.
CONCEPTUALIZING DISTANCE
Much more than operational cost-efficiency grounds and structural and physical remoteness
realities, the ICC embodies distance as a concept underpinning its ideals of independence21 and
impartiality22 in its various intersections with domestic actors and institutions upon which it
fundamentally relies by design.23
Scholars have approached the notion of distance in various ways. Latané, Liu, Nowak,
Bonevento, & Zheng (1995) confirm old empirical findings in psychology literature whereby ‘physical’ distance matters to influence and social impact and is negatively correlated therewith. Clark (2018: 37) introduces political distance as a notion at the core of the ICC’s work that reflects its need to insulate itself from ‘domestic agents and institutions which are viewed as either responsible for atrocities or likely to interfere in the Court’s efforts to prosecute suspects’. Fulfilling this need, he underlines, allows it to achieve its neutrality and impartiality. Finally, ‘Philosophical distance’ is the latter conception of separateness and characterizes the need to
21Article 42 of the Rome Statute states that ‘The Office of the Prosecutor shall act independently as a separate organ of the
Court’.
22 See Article 45 of the Rome Statute.
23 Article 86 of the Rome Statute is eloquent in this regard. It states: ‘States Parties shall, in accordance with the provisions
of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court’. This point will be highlighted as part of my case-comparison further below.
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uphold strictly the law by a critical detachment in the selection and judgement of individual
criminal cases of political, legal, social and cultural consequences (Clark, 2018: 41-43). This
view maps onto the old philosophical paradigm a la Kant in which the morality of an action lies
in the strict obeyance of the rules with no heeded regard to their consequences.
From these conceptions of law as prevalent, sealed from both politics and morality stem
philosophical and political attitudes of separateness of the ICC. To wit, the Court should then
operate above the fray of purportedly malicious politics and apply strictly the rules. This view is cogently reflected in Shklar’s watershed 1964 work as ‘legalism’ that is “the ethical attitude that holds that moral conduct is to be a matter of rule following, and moral relationships to
consist of duties and rights determined by rules” (1964: 1-2).
In terms of official policy, this critical separateness is often reflected in the ICC
Prosecutor’s discourse which would be found wanting without her ubiquitous invocation of
independence and impartiality as a mantra of justice and her taking of decisions
‘independent[ly] and … never influenced by political and/or other considerations including from the [Security] Council or any of its members’ (ICC, 2018d). Much in the same vein, in a meeting with NGOs in 2004, the first ICC Prosecutor highlighted back then that short on-the ground investigations of his office were motivated by ‘minimizin[g] the need for having local people in the investigative teams, thus helping avoid situations where impartiality is questionable’ (Kambale, 2012).
In sum, by espousing a political and a philosophical ideology of distance that sees local
contexts as a pollutant and fundamentally corrupt arena, and by self-prescribing the need for
insulating itself from such terrain in its desire to safeguard its high-minded ideals of
independence and impartiality, the ICC, it is argued, has not only undermined its ability to get
to grips with the domestic realm; it has actually undermined its investigations and made itself
15
Hence, my hypothesis suggests that ‘because of its attitudinal distance towards
domestic contexts, the ICC has failed to carry out effective investigations resulting in unsuccessful trials’. I arrow-diagram this proposition as follows.
Distanced justice poor evidence-gathering unsuccessful Trials (failed outcome)
I now turn to the empirical section with a view to testing the generated hypothesis.
RESEARCH DESIGN
Case selection and Method
The universe of international criminal justice comprises five international criminal tribunals
that make up the contemporary history of trials of mass atrocities, starting with the IMTs24,
followed by the ICTY and the ICTR and finally the ICC. This small-N universe invites a
qualitative case-oriented research. I discard the IMTs25, which do not belong to my empirical
category of sufficiently alike independent, impartial and physically distant tribunals. I simplify
by further dropping the ICTR in light of its overwhelming similarities with its peer, the ICTY,
in terms of design and outcome. My research strategy and case selection are primarily driven
by the empirical puzzle and the intrinsic value yielded by the ICTY negative case, developed
below. I intend to contrast and learn from the ICTY and the ICC cases which display the
aforementioned commonalities yet contradictory outcomes of trials, by using the method of
‘analytic induction’26, personal knowledge, concept formation, and the incorporating of insights
drawn from research findings, in order to identify possible causal conditions and pathways. The
ultimate goal is to gain leverage into my working hypothesis that enables generalization.
24 See supra note 6.
25As a nonconforming case, thus potentially offering additional insights, the IMTs will be nevertheless reverted to at a later
stage of this section.
26 I rely primarily for this inquiry on Ragin’s literature on case-oriented research including his explanations of the ‘analytic
16
Operationalization strategy
Given the overarching conception of distance (physical, political and philosophical) as a causal
factor at consideration in this paper (and possibly, other factors), the operationalization of my
theoretical claim follows the methodology laid out by Ragin (2004: 133-135) on causal
arguments that are multiple and conjunctural in form. Prior to this stage of investigation, my
case selection allows me to limit variation in ‘physical distance’ and eliminate it as a potential
explanation in the variation of the DV. A general explanation thererelated is formulated. In the
course of the analysis of the causal pathway, I refine concepts by identifying ‘States’ and
‘State-actors’ (United Nations Security Council and the EU) as additional explanatory variables of
interest across my cases.
Ragin (2004: 134) provides that ‘ When conditions A, B, and C are present, X causes Y; however, if any of these conditions (A, B, and C) is absent, and X is also absent, then Z causes Y’. Along these lines, when political and philosophical distance is present (physical distance being eliminated as insignificant), attitudinal distance causes ICC prosecutions to be
ineffective or otherwise. However, if political or philosophical distance is absent and attitudinal
distance is absent, then it is State and State-actors that cause ICC prosecutions to fail or
otherwise.
Measurement and Data collection
The outcome ‘(in)effectiveness’’ of the ICC is measured by the number of convictions during trials achieving punishment of the perpetrators. As for the assessment of the explanatory variable(s) amongst which multifaceted distance, I construct ‘system-specific’ indicators (Munck, 2004: 115) in the course of the investigation.
I collect data on the ICTY’s record of trials from primary sources. Official statements also account for my investigation. Additionally, I rely on secondary sources in the form of
17
documents and peer-reviewed journals as well as theoretical findings in scholarly literature that
are relevant to my analysis.
Analysis and interpretation
Intriguing paths seem to be followed by the ICC and the ICTY with regard to their effectiveness
of trials. Judging by the track record of the ICTY27, this ad-hoc tribunal has succeeded in
delivering criminal accountability when the ICC utterly failed despite the former and the latter
having both dispensed independent and impartial justice from afar. Along the lines of this
empirical puzzle, I surmise that ‘physical distance has little or no impact on international
criminal tribunals and courts’ effectiveness of trials’.
It is worth highlighting key features of the institutional design of both tribunals. The
ICC regime echoes the ICTY’s by clearly conferring not only the authority but also the
obligation upon individual States parties to cooperate with the Court (Zhou, 2006). Both are
thus predicated on state cooperation, the absence of which might cripple their work (Cassese,
2006). However, the design of the two institutions displays fundamental differences. Upon its
creation, the Yugoslavia Tribunal was nested28 within the authority of the United Nations
Security Council (UNSC) under Chapter VII of the UN Charter, and was therefore under its
influence. As such, the ICTY relied on being a subsidiary organ of the UNSC to achieve
successful trials. As Hurd argues, it is the legitimacy and authority of the UNSC that gives
strength to rules set down by international institutions that have little or no capacity to enforce
them (2007: 194). In the former Yugoslavia, it is widely acknowledged that the ICTY was
empowered by a UNSC resolution binding on all states29 and had the active support of the
27 For data analysis on the ICTY, see ICTY (2017).
28 ‘Nesting’ also referred to as ‘embedding’ forms part of the regime complex theory. On ‘nesting’ and the institutional
design of the ICTY, see Rudolph (2017: 64-65).
29 UNSC Resolution 827 of 25 May 1993 which contains also the Statute of the ICTY. See United Nations Security Council
18
United States. Additionally, the European Union then preconditioned an integration perspective
for Serbia with its ‘full cooperation’ with the tribunal.30
In contrast, the ICC was designed as an independent Court31 and has therefore no
independent power on its effectiveness in the absence of willful state cooperation or action from
the UNSC.32 Where it might reach out, it runs the risk of becoming politicized by States and
the UNSC. Weiner (2013) claims that if courts are seen as engaging in politics, they run the risk
of straying from the path indicated by the moral and legal compass that makes up their
legitimacy and authority; while Tiemessen (2014) argues that ICC’s independence and
impartiality can best be assured with greater distance from the UNSC and States to avoid
becoming a tool of politics.
This argument reflects a tension inherent in the Court’s desire to act autonomously of States and State-actors while inevitably relying on them to achieve effectiveness, which is finely expressed by the ICC’s first Prosecutor (ICC, 2003): ‘… there seems to be a paradox: the ICC
is independent and interdependent at the same time. It cannot act alone. It will achieve efficiency only if it works closely with other members of the international community’.
Hence, my reformulated hypothesis suggests that ‘The extent to which the ICC opts to
distance itself from States and State-actors shapes its ability to collect probative evidence and thus its capacity to build effective criminal cases that result in successful prosecutions’. I frame
this finding with variables as follows.
30 See for example European Commission (2011).
31In fact, the ICC is not part of the UN and was created independently by treaty.
32 The UNSC is endowed with several formal powers under the Rome Statute. In this particular context, The Court’s
investigations can be backed up by UN Chapter VII enforcement mechanisms which are provided for under article 87(7) of the Rome Statute in case the concerned state fails to cooperate with the Court.
19
(IV) (IntV) (DV)
Attitudinal distance towards Quality of evidence-gathering (Un)successful trials States and State-actors
x
Physical distance
Political distance
}
(CVs)33Philosophical distance
Several points are implied from the empirically enhanced hypothesis. The value of
political and philosophical distance magnifies the impact of attitudinal distance, thereby
lessening odds of effectual evidence-gathering and trials. Furthermore, physical distance does
not significantly matter for the overarching ICC’s distance towards States and State-actors nor
is it significant for the outcome of trials. This finding is corroborated when further testing is
undertaken against the IMTs case: Absent physical, political and philosophical distance, as in
the Nuremberg case, by virtue of the very design of the tribunal, States and/or State-actors cause
the outcome. In effect, in Nuremberg…‘the problem of obtaining evidence was never an issue
because the allies had unhampered access to the German archives’ (Cogan, 2000: 411).34
Consequently, to the extent that the ICC distances itself from States and State-actors, it runs the
risk of being ineffective in its investigations and prosecutions; to the extent that it relies heavily
on States and the State-actors, it runs yet another risk of becoming politicized and partial.
33‘The values of the condition variables governs the size of the impact that IV or IntVs have on DVs’. This relationship is indicated by the multiplication symbol x. See Van Evera (1997:11; 13).
34 Further testing is beyond the remit of this paper. Besides the IMTs test, my finding is corroborated when looking at the
ICC’s fraught relations of distance with Uganda’s and DRC’s authorities over prosecution of mass atrocities. See Clark (2018: 150-186).
20
DISCUSSION AND CONCLUSION
In the previous section, I have undertaken a dialogue between ideas and evidence, following a
case-oriented comparison approach that is causally analytic and historically interpretive. By
conducting and learning from the ICTY case, I reached generalizable findings at a conceptual
level higher than the intial setting, that went for subsequent testing. Two conceptions of distance
are highlighted: A spatial distance which is akin to sheer remoteness and a compounded spatial,
political, and philosophical one. In respect of the ICTY, distance does not significantly matter
for its (in)effectiveness and is offset by this tribunal being folded into the broader regime
governing atrocities of the UNSC and thus, relying on power and coercion, authority and
legitimacy of this supreme organ to enforce its rules; while in respect of the latter, separateness
takes on additional political and philosophical understandings by virtue of the ICC being
created as an independent judicial institution.
What can one learn from the afore enhanced hypothesis? The main lesson learned35 is
that an international criminal court operating above the fray of politics and driven by hardnosed
legalism in order to remain neutral and even-handed appears to be avowedly illusory. Rather,
as political philosopher Shklar (1964: 223) foresaw ‘The separation of legal and political
thinking…ought to be ended… [and that] ‘there are degrees of legalism’. Indeed, the very statement of the ICC’s Prosecutor on the court’s ‘interdependence’ with political actors hardly belies the now widespread contention amongst several scholars of the ICC as a political
institution that is not divorced from the political world, but operating in its very midst (Kersten,
2016: 168; Moyn, 2013; Tiemessen, 2014; Rodman, 2014; Weiner, 2013).
35
21
LOOKING FORWARD
Narrowing the distance
Once the spotlight of ineffectiveness has shone and attitudinal distance revealed its
shortcomings, what remains to be done? What alternative or perhaps what scope might be best
for distanced justice? Whilst distanced justice might have sufficient grounds to be incriminated
as the culprit of the ICC’s poor record, there is however no argument that is sure-fire and bullet-proof in conclusively asserting the merits of a distanced-justice nor in vindicating a strict
locally-based justice approach. In the field of transitional justice, Gready (2005: 6) confronts ‘distanced’ and ‘embedded’ justice and argues for the need to strike a correct balance that builds on the ‘complementary capacities and legitimacies’ of both (2005:19). Verovšek (2017: 11) argues for a ‘contextual universalism’ whereby respect for international legal norms goes hand in hand with the stimulation of discourse in the communities where crimes occured. Robinson
(2005: 324) beautifully categorizes criticisms formulated for either poles of this antagonism
and others, along ‘inescapable dyads’ whereby, in this instance, the too close/too far dyad means that the ICC can be plausibly criticized as being ‘too far’ from domestic authorities or ‘too close’. In the same vein, it could be argued that views on the need for many cases/no cases, respectively formulated by the UK delegate and the ICC former Prosecutor follow this dual
pattern of antagonisms.
In light of the foregoing, the ICC’s operation might perhaps need to search for a middle
ground, a conciliatory path that yields a dose of efficiency and legitimacy to its policies and elevates the Court’s work above the fray of criticisms, - well-founded for many, less so for others-. But beyond these considerations, and more broadly, there might be a need to critically
rethink the international criminal justice enterprise as a whole, ICC-centric as it currently is,
when this judicial body has clearly shown inefficiency, and structural and operational
22
ICC. In the realm of criminal tribunals, a middle-path creation, an alternate solution of ‘in-betweenness’ (Pieterse, 2001) that stands between purely domestic courts and purely international tribunals and courts is captured by hybrid tribunals which are introduced in the
following section.
A role for hybrid tribunals?
Much of the literature on hybrid tribunals has addressed this institutional breed from a
post-positivistic perspective, focusing either on their ongoing operation or, on their legacy,
particularly by drawing lessons from their work in fields such as Cambodia, Sierra Leone,
Timor-Leste and Bosnia-Herzegovina (See for example Jalloh, 2014). Several works have
either nurtured enthusiasm or low expectations at hybrids, particularly highlighting their merits
and demerits (Mégret, 2005; Dickisnson, 2002; 2003, Higonnet, 2005). But by far and large,
the idea of a hybrid complementing or supplementing the ICC is not new in literature
(Dickinson, 2002; Higonnet, 2005) and has been revived more recently (Mc Auliffe, 2011; Van
Schaak, 2016; Kersten, 2017). For McAuliffe (2011:64), ‘hybrid courts can be deployed in all
sorts of post-conflict and post-repression societies like they have in the past, either as an
alternative or complement to the ICC’. Higonnet (2005: 349) claims that ‘ hybrids are compatible with the ICC’ while Dickinson (2002) argues in favor of hybrids within a complementarity perspective whereby ‘such courts are best seen not as alternatives to international or local justice, but rather as a complement to both’. Lastly, the finding
Thus, hybrid experiments might well be the panacea especially when ‘much of the crises experienced by the [ICC] in its first [fifteen years] flow from the Court’s fundamental weddedness to distance’ (Clark, 2018: 304). I thus posit that ‘the ICC might overcome distance
missteps hence ineffectiveness if it had a hybrid tribunal operating alongside it’. This brings
me to the research design where I should gain further insights into my theoretical proposition
23
Probing hybrids along the CAR case
Case selection
This section probes a role for hybrid courts alongside the ICC as a means for the latter
to attain effective prosecutions. My qualitative research strategy intends to engage in ‘an intermediate step between hypothesis generation and hypothesis testing’ as foreseen by plausibility probes (Levy, 2008:3), by being able to test and sharpen the theoretical claim I
made above via an ‘illustrative case’. Such cases form part of plausibility probes, are often quite
brief and aim to give the reader a “feel” for a theoretical argument by providing a concrete
example of its application (Levy, 2008: 6). A selected candidate is the precedent set by the
newly established SCC next to the ICC in the CAR context, sketched at the very outset. This
case falls quite short of observations since the SCC has only become operational in October
2018 and has yet to start investigations, the analysis of which is at the core of my theoretical
claim.
Method
I employ a triangulation of methods in the form of a counterfactual probing of my illustrative
CAR case since neither method is exclusive.36 The use of counterfactual thinking is
well-justified since it is typically activated by a failed goal… [and has] a primary function of seeking
to solve it (Epstude & Roese, 2008). The use of the CAR precedent besides being intrinsically
valuable as such, offers insights for my study by tapping into context. A third method makes
use of ‘deductive content analysis’ which is often used in cases where the aim is to retest
existing data in a new context, including testing of concepts, categories, models or hypotheses
(Elo & Kyngäs, 2008). The last employed method imagines causality through discourse by accounting for discourse analysis as a causal mechanism. The latter two methods, further
24
elaborated upon below, aim at constructing meanings in relation to evidence-gathering and the
mechanism providing for the channeling of collected evidence, respectively (Herrera &
Braumoeller, 2004).
Operationalization strategy
My counterfactual embedding of the single CAR case aims to solve a failed goal (ICC
effectiveness of trials) by helping correct and improve behavior that has been unsuccessful in
the past (Epstude & Roese, 2008) which is in my case an evidence-gathering problem. Applying
counterfactual reasoning, I probe what the outcome of effectiveness would have been for the
ICC had the hybrid tribunal existed (in actual fact) next to the ICC in the CAR.
My specified counterfactual refers to the question whether the antecedent, along with
the conditions that are necessary to support it, is likely to lead to the hypothesized consequent.
I specify my counterfactual's antecedent as investigation or evidence-gathering, the consequent as effectiveness and the ‘causal linkages’ or ‘supporting conditions’ between them as exchange of information between the ICC and the hybrid tribunal established.
Discourse analysis involves the dispositional properties or tendencies of entities that,
when activated within a system, generate events and are then deemed causal mechanisms
through which exchange of information becomes possible (Banta, 2012). Entities on focus here
are the ICC principals and officials in CAR. Content analysis seeks to translate data and
concepts related to the hybrid operation when dealing with evidence-gathering, to the CAR
context.
25 No-Hybrid (no problem-solving would occur)
Antecedent Consequent
Rve
The ICC relies on the cooperation of States where it is investigating and the enforcement powers
of State-actors. In post-conflict situations, States have weak judiciaries that do not allow for
cooperation and efficient exchange of information and evidence. To the extent that it maintains
a distant policy from State-actors or when such actors are not willing to cooperate, the ICC
would not be able to collect probative evidence. Thus, prosecutions are likely to be ineffective
for lack of evidence.
Measurement and Data collection
I focus on both institutions and actors. Thus, my units of observation include the ICC
and the SCC, on the one hand, and their Prosecutor and Special Prosecutor, respectively, on the
other hand, as both actors are considered to be instrumental to the operation of the two courts
in terms of investigations and prosecutions. I finally rely on statements, observations,
documents academic books and articles published in peer-reviewed journals as evidence for my
empirical enquiry. Ineffective prosecutions Poor evidence-gathering ICC (OTP) Distant investigative policy Inactive cooperation from States and State-actors
26
The Case
The SCC was established with a five-year, renewable mandate to prosecute the most
serious crimes in CAR since 2003, and officially launched in 22 October 2018. It is fully
integrated in the CAR domestic judicial system with a blend of national and international judges
and prosecutors and relies for its functioning and operationalization on international financial
and logistical support, respectively through voluntary contributions as well as the United
Nations (UN). Support is also provided to the SCC by the UN in terms of investigations37.
The Hybrid tribunal was established as a result of the permanent inability of the CAR
ordinary courts to investigate and prosecute the most serious crimes in a country in a country
torn by decades-long conflict and impunity (Loué, 2018) and also, in order to try international
crimes that cannot be tried in local courts since the norm of international criminal accountability
has not been internalized in the country. The SCC’s establishment is also a response to the fact
that the ICC cannot cope with the massive scale of atrocity crimes in the country on its own
(ICC, 2018c).
Prior to the establishment of the SCC and given the inability of the CAR’s domestic courts, the ICC has been the ‘only game in town’ catering as a Court of last resort for justice on its own, actively investigating and prosecuting international crimes. The ICC Prosecutor had
basically relied on its office for evidence-gathering. This resulted in an acquittal for lack of
evidence of Jean-Pierre Bemba. Two more suspects surrendered to the Court, Alfred Yekatom
and Patrice Edouard Ngaissona, await trial at The Hague.
On 5 December 2018, the Special Prosecutor, Col. Toussaint Muntazini, a foreign
special prosecutor originating from the DRC, announced the SCC’s prosecutorial strategy
37See Article 53 of the SCC’s Organic Law on the budget of the Court (SCC, 2018a). Efforts are led by MINUSCA, the United
Nations peacekeeping mission in CAR. See MINUSCA, (2018). See for further details on the establishment of the SCC (Labuda, 2017).
27
(SCC, 2018b) by virtue of which investigations have become operationalized. However, no
prosecutions have come about to date suggesting investigations will take time, much the same
as the severe delay observed in the creation of this hybrid Court (Labuda, 2017).
A key question to contemplate is to what extent would the SCC be able to collect
evidence on the ground in CAR when the ICC has failed to do so? Benzing & Bergsmo (2004:
409) argue that ‘hybrid tribunals are proximate to the events in question and may thus have reasonably immediate access to relevant potential evidence’.
By what mechanism would the SCC be of benefit to the ICC towards solving its evidence-gathering problem? The new legal framework in CAR as well as motivational
attitudes of the main actors at the ICC and the SCC suggest future synergetic and cooperative
relationships with respect to the issue of exchange of information and evidence. With respect
to motivations, the Prosecutor of the ICC has emphasized the importance of ‘cooperation’ and ‘complementarity’ and on developing ‘strong linkages’ between national judicial systems and the ICC (ICC, 2018) while ‘CAR authorities have insisted that the SCC will complement rather than compete with the ICC’ (Kersten, 2017). With respect to the legal framework, the Prosecutorial Strategy and the Organic Law which set up the SCC, set out additionally
modalities for exchange of information between the Special Prosecutor and the ICC which
include evidence-sharing as foreseen by the investigative powers and functions of both.
Thus, the plausible counterfactual argument, all things being equal, is that ‘in
post-conflict contexts, a hybrid tribunal established alongside the ICC, plausibly provides for better evidence-collection and better evidence-sharing with the ICC as a result of its access to evidence, and collaborative and cooperative relationships established between the two courts’.
28 Hybrid Counterfactual- Ceteris paribus
Antecedent conditions Antecedent Consequent
(connecting principles)
Where the antecedent did not actually occur, the hybrid-counterfactual model suggests
problem-solving would plausibly occur in the form of effective prosecutions by virtue of
establishing a collaborative relationship on investigations between the ICC and the newly
created SCC, as well as the SCC’s plausible intrinsic potential for better evidence-collection.
The plausible advantage of hybrids in terms of proximity and evidence-sharing offsets ICC’s
distance missteps and an eventual role of third parties in this process.
Brady, Collier and Seawright (2010: 25) underline that ‘knowledge of context helps us to know what is hidden behind the assumption ‘’ other things being equal’’ which is in turn crucial for the causal homogeneity assumption that is a requisite for valid causal inference’. In the CAR case, one key contextual factor is the fact that the prosecutorial strategy of the SCC
makes clear that security concerns and the feasibility of investigations and arrests (paras 64-67)
will make or break the SCC especially that eighty percent of the CAR territory is controlled by
armed groups (Labuda, 2019b). This might hamper the conduct of investigations, the obtaining
of relevant evidence by the SCC and thus impede potential better performance of the ICC.
Plausible effective prosecutions Plausible probative evidence -gathering Hybrid/ICC cohabitation
Collaborative relationship on the exchange of information and evidence
29
Hence, my reformulated thesis suggests that it is plausible that ‘a fully operational
hybrid Court operating alongside the ICC considerably offset ICC’s distance missteps thus its ineffectiveness problems’.
Lebow’s counterfactual reasoning suggests departing from the linearity of systemic theories that invariably ignore the cognitive limitations and emotional commitments of actors
and the attention they can give to other domestic and foreign problems they confront (2010:
260-261) (See Appendix A).
DISCUSSION AND CONCLUSION
This thesis has sought to make a critical appraisal of the state of affairs at the ICC after more
than sixteen years of operation and to offer orientations for course correction in times
particularly ripe for reform for this institution. This thesis makes several contributions. This is
the first academic study to find that the ICC’s attitudinal weddedness to distance is associated
with ultimate unsuccessful prosecutions. By bringing front and center a wide conceptualization
of distance that goes beyond sheer remoteness analyses of international tribunals and courts, I
illustrated how the ICC ideologically-laden separateness towards domestic contexts has had the structral effects that it does on the Court’s ineffectiveness of trials.
This thesis is also the first attempt to provide the reader with a feel of the
theoretically-grounded potential of a hybrid tribunal concurrently operating with the ICC as bolstering the latter’s investigations through the examination of the CAR case now that its investigations and prosecutions are set to unfold in the near-run.
Another contribution has been made in bridging legal, philosophical and political
science scholarships by highlighting how apolitical legalism as an ethos of the law ought to be
ended and by emphasizing the ‘inescapably political framework of law’ (Moyn, 2013: 474)
30
223) ‘The relationship of law to morality and to politics is not among those topics that can be discussed as part of any specifically ‘legal science’. This claim is enriched by Abbott in his
work on the atrocities regime (1999) when arguing that, “situating legal rules and institutions
in their political context help[s] to reduce the abstraction and self-contained character of doctrinal analysis and to channel normative idealism in effective directions’’.
As the broader aim of this thesis is to contribute to a cumulative research program, my
research question leaves considerable room for further analysis on how central could the ICC
be in the international criminal justice architecture. Guided by a firm belief that inasmuch as
the ICC sorely needs reform, it needs to remain central to the fight against impunity, I have
highlighted the potential of joint international-hybrid criminal accountability enterprises for the
ICC to rise again with improved performance. This view echoes Akhavan’s claim (2016: 1045) that ‘It may be said that the ICC has a rotating role, at both the centre and the periphery of the accountability paradigm’. This thesis has also its own limitations. Given its remit, I have striven
for concision in some parts without sacrificing to parsimony.
Additional avenues for research might address the ineffectiveness of the ICC broadly
termed against its numerous other metrics. Others might move beyond treating the ICC and the
SCC in isolation, with a standalone focus on both merely as ‘structures’, and look instead into
the regime38 underlying the relationship between the ICC and the eventual hybrid tribunal
standing alongside it, thus unpacking the institutional design, dynamics, behaviour and
interplay between the two institutions and see how effective is the regime governing the
issue-area at consideration in reaching the collective optimum39 of global accountability.
38In the CAR case, see Article 37 of the SCC’s law that defines the relationship between the SCC and the ICC. 39Criminal accountability has also been approached in literature as global governance. A prominent work on the global
governance of criminal justice is made by Burke-White (2005). Theoretical insights might be drawn from literature on global governance and international cooperation on environment and resources management particularly literature on ‘regime effectiveness’ (or ‘regime consequences’). For examples on governance and regime consequences, see (Young, 1997; Stokke, 2012; Underdal, 2004). .
31
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